EN BANC

[G.R. No. L-54558. May 22, 1987.]

EDUARDO B. OLAGUER, OTHONIEL V. JIMENEZ, ESTER MISA-JIMENEZ, CARLOS LAZARO, REYNALDO MACLANG, MAGDALENA DELOS SANTOS-MACLANG, TEODORICO N. DIESMOS, RENE J.MARCIANO, DANILO R. DE OCAMPO, VICTORIANO C. AMADO andMAC ACERON, petitioners, vs. MILITARY COMMISSION NO. 34, THETRIAL COUNSEL OF MILITARY COMMISSION NO. 34 and THEMINISTER OF NATIONAL DEFENSE, respondents.

[G.R. No. L-69882. May 22, 1987.]EDUARDO OLAGUER, OTHONIEL JIMENEZ, REYNALDO MACLANGand ESTER MISA-JIMENEZ, petitioners, vs. THE CHIEF OF STAFF,AFP, MILITARY COMMISSION NO. 34, JUDGE ADVOCATE GENERAL,AFP, MINISTER OF NATIONAL DEFENSE and THE DIRECTOR OFPRISONS, respondents.

Sabino Padilla, Jr. and Jose B. Puerto for petitioner Othoniel Jimenez.

Fulgencio Factoran for petitioners Maclang and Magdalena delos Santos-Maclang.

Rene Saguisag for petitioner Mac Aceron.

Joaquin Misa for petitioner Ester Misa-Jimenez.

Jejomar Binay for petitioners Reynaldo Maclang and Magdalena delos Santos-Maclang.

Jaime Villanueva for petitioner Danilo R. de Ocampo.

Joker P. Arroyo, Lorenzo M. Tañada and Rene Sarmiento for petitioners EduardoOlaguer and Othoniel Jimenez.

Wigberto Tañada for petitioners Olaguer and Maclang.

D E C I S I O N

GANCAYCO, J p:

Filed with this Court are two Petitions wherein the fundamental question iswhether or not a military tribunal has the jurisdiction to try civilians while the civilcourts are open and functioning. The two Petitions have been consolidatedinasmuch as the issues raised therein are interrelated.

On December 24, 1979, the herein petitioners Eduardo B. Olaguer, Othoniel V.Jimenez, Ester Misa-Jimenez, Carlos Lazaro, Reynaldo Maclang, Magdalena De LosSantos-Maclang, Teodorico N. Diesmos, Rene J. Marciano, Danilo R. De Ocampo andVictoriano C. Amado were arrested by the military authorities. They were all initiallydetained at Camp Crame in Quezon City. They were subsequently transferred to thedetention center at Camp Bagong Diwa in Bicutan except for petitioner Olaguerwho remained in detention at Camp Crame. Petitioner Mac Aceron voluntarilysurrendered to the authorities sometime in June, 1980 and was, thereafter, alsoincarcerated at Camp Bagong Diwa. All of the petitioners are civilians. cdll

On May 30, 1980, the petitioners were charged for subversion 1 upon therecommendation of the respondent Judge Advocate General and the approval of therespondent Minister of National Defense. 2 The case was designated as CriminalCase No. MC-34-1.

On June 13, 1980, the respondent Chief of Staff of the Armed Forces of thePhilippines 3 created the respondent Military Commission No. 34 to try the criminalcase filed against the petitioners. 4 On July 30, 1980, an amended charge sheet wasfiled for seven (7) offenses, namely: (1) unlawful possession of explosives andincendiary devices; (2) conspiracy to assassinate President and Mrs. Marcos; (3)conspiracy to assassinate cabinet members Juan Ponce Enrile, Francisco Tatad andVicente Paterno; (4) conspiracy to assassinate Messrs. Arturo Tangco, Jose Roño andOnofre Corpus; (5) arson of nine buildings; (6) attempted murder of Messrs.Leonardo Perez, Teodoro Valencia and Generals Romeo Espino and Fabian Ver; and(7) conspiracy and proposal to commit rebellion, and inciting to rebellion. 5Sometime thereafter, trial ensued.

In the course of the proceedings, particularly on August 19, 1980, the petitionerswent to this Court and filed the instant Petition for prohibition and habeas corpus. 6They sought to enjoin the respondent Military Commission No. 34 from proceedingwith the trial of their case. They likewise sought their release from detention byway of a writ of habeas corpus. The thrust of their arguments is that militarycommissions have no jurisdiction to try civilians for offenses alleged to have beencommitted during the period of martial law. They also maintain that theproceedings before the respondent Military Commission No. 34 are in gross violationof their constitutional right to due process of law.

On September 23, 1980, the respondents filed their Answer to the Petition. 7 OnNovember 20, 1980, the petitioners submitted their Reply to the Answer. 8 In aMotion filed with this Court on July 25, 1981, petitioner Olaguer requested that thePetition be considered withdrawn as far as he is concerned. 9 In the Resolution ofthis Court dated July 30, 1981, the said prayer was granted. 10 On August 31, 1984,the respondents filed a Rejoinder to the Reply submitted by the petitioners. 11

On December 4, 1984, pending the resolution of the Petition, the respondentMilitary Commission No. 34 passed sentence convicting the petitioners and imposedupon them the penalty of death by electrocution. Thus, on February 14, 1985,petitioners Olaguer, Maclang and Othoniel and Ester Jimenez went to this Court and

filed the other instant Petition, this time for habeas corpus, certiorari, prohibitionand mandamus. They also sought the issuance of a writ of preliminary injunction. 12The respondents named in the Petition are the Chief of Staff of the Armed Forces ofthe Philippines, Military Commission No. 34, the Judge Advocate General, theMinister of National Defense and the Director of the Bureau of Prisons.

In sum, the second Petition seeks to enjoin the said respondents from taking anyfurther action on the case against the petitioners, and from implementing thejudgment of conviction rendered by the respondent Military Commission No. 34 forthe reason that the same is null and void. The petitioners also seek the return of allproperty taken from them by the respondents concerned. Their other arguments inthe earlier Petition are stressed anew.

On August 9, 1985, the respondents filed their Answer to the Petition. 13 OnSeptember 12, 1985, this Court issued a temporary restraining order enjoining therespondents from executing the Decision of the respondent Military Commission No.3 4 14 On February 18, 1986, the petitioners submitted an extensive Brief. 15Thereafter, and in due time, the cases were submitted for decision.

In resolving these two Petitions, We have taken into account several superveningevents which have occurred hitherto, to wit —

(1) On January 17, 1981, President Ferdinand E. Marcos issuedProclamation No. 2045 officially lifting martial law in the Philippines. The sameProclamation revoked General Order No. 8 (creating military tribunals) anddirected that "the military tribunals created pursuant thereto are herebydissolved upon final determination of cases pending therein which may notbe transferred to the civil courts without irreparable prejudice to the state inview of the rules on double jeopardy, or other circumstances which renderprosecution of the cases difficult, if not impossible."; and

(2) Petitioner Ester Misa-Jimenez was granted provisional liberty inJanuary, 1981. On the other hand, petitioners Eduardo Olaguer and OthonielJimenez obtained provisional liberty on January 23, 1986. 16 The rest of thepetitioners have been released sometime before or after President CorazonC. Aquino assumed office in February, 1986.

The sole issue in habeas corpus proceedings is detention. 17 When the release of thepersons in whose behalf the application for a writ of habeas corpus was filed iseffected, the Petition for the issuance of the writ becomes moot and academic. 18Inasmuch as the herein petitioners have been released from their confinement inmilitary detention centers, the instant Petitions for the issuance of a writ of habeascorpus should be dismissed for having become moot and academic.

We come now to the other matters raised in the two Petitions. The main issueraised by the petitioners is whether or not military commissions or tribunals havethe jurisdiction to try civilians for offenses allegedly committed during martial lawwhen civil courts are open and functioning.

The petitioners maintain that military commissions or tribunals do not have such

jurisdiction and that the proceedings before the respondent Military Commission No.34 are in gross violation of their constitutional right to due process of law. Therespondents, however, contend otherwise. llcd

The issue on the jurisdiction of military commissions or tribunals to try civilians foroffenses allegedly committed before, and more particularly during a period ofmartial law, as well as the other issues raised by the petitioners, have been ruledupon by a divided Supreme Court in Aquino, Jr. v. Military Commission No. 2 . 19 Thepertinent portions of the main opinion of the Court are as follows —

"We hold that the respondent Military Commission No. 2 has been lawfullyconstituted and validly vested with jurisdiction to hear the cases againstcivilians, including the petitioner.

"1. The Court has previously declared that the proclamation of MartialLaw . . . on September 21, 1972, . . . is valid and constitutional and that itscontinuance is justified by the danger posed to the public safety. 20

"2. To preserve the safety of the nation in times of national peril, thePresident of the Philippines necessarily possesses broad authoritycompatible with the imperative requirements of the emergency. On the basisof this, he has authorized in General Order No. 8 . . . the Chief of Staff,Armed Forces of the Philippines, to create military tribunals to try and decidecases 'of military personnel and such other cases as may be referred tothem.' In General Order No. 12 . . ., the military tribunals were vested withjurisdiction 'exclusive of the civil courts,' among others, over crimes againstpublic order, violations of the Anti-Subversion Act, violations of the laws onfirearms, and other crimes which, in the face of the emergency, are directlyrelated to the quelling of the rebellion and preservation of the safety andsecurity of the Republic. . . . These measures he had the authority topromulgate, since this Court recognized that the incumbent President(President Marcos), under paragraphs 1 and 2 of Section 3 of Article XVII ofthe new (1973) Constitution, had the authority to 'promulgateproclamations, orders and decrees during the period of martial law essentialto the security and preservation of the Republic, to the defense of thepolitical and social liberties of the people and to the institution of reforms toprevent the resurgence of the rebellion or insurrection or secession or thethreat thereof . . .' 21

"3. Petitioner nevertheless insists that he being a civilian, instrial by military commission deprives him of his right to due process,since in his view the due process guaranteed by the Constitution topersons accused of 'ordinary' crimes means judicial process. Thisargument ignores the reality of the rebellion and the existence ofmartial law. It is, of course, essential that in a martial law situation, themartial law administrator must have ample and sufficient means toquell the rebellion and restore civil order. Prompt and effective trial andpunishment of offenders have been considered as necessary in a

state of martial law, as a mere power of detention may be whollyinadequate for the exigency. 22 '. . . martial law . . . creates anexception to the general rule of exclusive subjection to the civiljurisdiction, and renders offenses against the laws of war, as well asthose of a civil character, triable, . . . by military tribunals.' 23 'Publicdanger warrants the substitution of executive process for judicialprocess.' 24 . . . 'The immunity of civilians from military jurisdictionmust, however, give way in areas governed by martial law. When it isabsolutely imperative for public safety, legal processes can besuperseded and military tribunals authorized to exercise thejurisdiction normally vested in courts.' 25 . . ."

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"5. . . . The guarantee of due process is not a guarantee of any particularform of tribunal in criminal cases. A military tribunal of competentjurisdiction, accusation in due form, notice and opportunity to defend andtrial before an impartial tribunal, adequately inset the due processrequirement. Due process of law does not necessarily mean a judicialproceeding in the regular courts. 26 . . ."

This ruling has been affirmed, although not unanimously, in at least six other cases,to wit: Gumaua v. Espino, 27 Buscayno v. Enrile, 28 Sison v. Enrile, 29 Luneta v.Special Military Commission No. 1, 30 Ocampo v. Military Commission No. 25, 31 andBuscayno v. Military Commission Nos. 1, 2, 6 and 25. 32

These rulings notwithstanding, the petitioners anchor their argument on theirprayer that the ruling in Aquino, Jr. be appraised anew and abandoned or modifiedaccordingly. After a thorough deliberation on the matter, We find cogent basis forre-examining the same. LibLex

Some recent pronouncements of this Court could be considered as attempts toeither abandon or modify the ruling in Aquino, Jr.

I n De Guzman v. Hon. Leopando, et al., 33 an officer of the Armed Forces of thePhilippines and several other persons were charged with Serious Illegal Detentionbefore the Court of First Instance of Maguindanao sometime in October, 1982. Themilitary officer sought to effect the transfer of the case against him to the GeneralCourt Martial for trial pursuant to the provisions of Presidential Decree No. 1850.The trial court disallowed such transfer for the reason that the said Decree isunconstitutional inasmuch as it violates the due process and equal protectionclauses of the Constitution, as well as the constitutional provisions on social justice,the speedy disposition of cases, the republican form of government, the integrityand independence of the judiciary, and the supremacy of civilian authority over themilitary.

When the matter was elevated to this Court by way of a Petition for certiorari,prohibition and mandamus, the Court decided that a ruling on the constitutionalissues raised was not necessary. With the view that practical and procedural

difficulties will result from the transfer sought, this Court resolved to dismiss thePetition for lack of merit.

I n Animas v. The Minister of National Defense, 34 a military officer and severalcivilians were charged with murder alleged to have been committed sometime inNovember, 1971. All of the said accused were recommended for prosecution beforea military tribunal in the course of the proceedings, the said accused went to thisCourt on a Petition for certiorari and challenged the jurisdiction of the militarytribunal over their case. The petitioners contended that General Order No. 59 uponwhich the jurisdiction of the military tribunal is anchored refers only to the crime ofillegal possession of firearms and explosives in relation to other crimes committedwith a political complexion. They stressed that the alleged murder was devoid ofany political complexion.

This Court, speaking through Mr. Justice Hugo E. Gutierrez, Jr., ordered the transferof the criminal proceedings to the civil courts after noting that with martial lawhaving been lifted in the country in 1981, all cases pending before the militarytribunals should, as a general rule, be transferred to the civil courts. The Court wasalso of the view that the crime alleged to have been committed did not have anypolitical complexion. We quote the pertinent portions of the Decision of the Court,to wit —

"Inspite or because of the ambiguous nature of . . . civilian takeover ofjurisdiction was concerned and notwithstanding the shilly-shallying andvacillation characteristic of its implementation, this Court relied on theenunciated policy of normalization in upholding the primacy of civil courts.This policy meant that as many cases as possible involving civilians beingtried by military tribunals as could be transferred to civil courts should beturned over immediately. In case of doubt, the presumption was in favor ofcivil courts always trying civilian accused.

xxx xxx xxx

"The crime for which the petitioners were charged was committed . . . longbefore the proclamation of martial law. . . . Now that it is already late 1986,and martial law is a thing of the past, hopefully never more to return, thereis no more reason why a murder committed in 1971 should still be retained,at this time, by a military tribunal. . . ."

We agree with the dissenting views of then Justice, now Chief Justice ClaudioTeehankee 35 and Madame Justice Cecilia Muñoz-Palma 36 in Aquino, Jr. in so far asthey hold that military commissions or tribunals have no jurisdiction to try civiliansfor alleged offenses when the civil courts are open and functioning. LLphil

Due process of law demands that in all criminal prosecutions (where the accusedstands to lose either his life or his liberty), the accused shall be entitled to, amongothers, a trial. 37 The trial contemplated by the due process clause of theConstitution, in relation to the Charter as a whole, is a trial by judicial process, notby executive or military process. Military commissions or tribunals, by whatever

name they are called, are not courts within the Philippine judicial system. Asexplained by Justice Teehankee in his separate dissenting opinion —

". . . Civilians like (the) petitioner placed on trial for civil offenses undergeneral law are entitled to trial by judicial process, not by executive ormilitary process.

"Judicial power is vested by the Constitution exclusively in the SupremeCourt and in such inferior courts as are duly established by law. Judicialpower exists only in the courts, which have 'exclusive power to hear anddetermine those matters which affect the life or liberty or property of acitizen.' 38

"Since we are not enemy-occupied territory nor are we under a militarygovernment and even on the premise that martial law continues in force, themilitary tribunals cannot try and exercise jurisdiction over civilians for civiloffenses committed by them which are properly cognizable by the civilcourts that have remained open and have been regularly functioning. 39 . . .

"And in Toth v. Quarles, 40 the U.S. Supreme Court further stressed that 'theassertion of military authority over civilians cannot rest on the President'spower as Commander-in-Chief or on any theory of martial law.'

xxx xxx xxx

"The U.S. Supreme Court aptly pointed out . . ., in ruling that dischargedarmy veterans (estimated to number more than 22.5 million) could not berendered 'helpless before some latter-day revival of old military charges' andsubjected to military trials for offenses committed while they were in themilitary service prior to their discharge, that 'the presiding officer at a courtmartial is not a judge whose objectivity and independence are protected bytenure and undiminished salary and nurture by the judicial tradition, but is amilitary law officer. Substantially different rules of evidence and procedureapply in military trials. Apart from these differences, the suggestion of thepossibility of influence on the actions of the court-martial by the officer whoconvenes it, selects its members and the counsel on both sides and whousually has direct command authority over its members is a pervasive one inmilitary law, despite strenuous efforts to eliminate the danger.'

"The late Justice Black . . . added that '(A) Court-Martial is not yet anindependent instrument of justice but remains to a significant degree aspecialized part of the over-all mechanism by which military discipline ispreserved,' and that ex servicemen should be given 'the benefits of a civiliancourt trial when they are actually civilians . . . Free countries of the worldhave tried to restrict military tribunals to the narrowest jurisdiction deemedabsolutely essential to maintaining discipline among troops in active service.'"

Moreover, military tribunals pertain to the Executive Department of theGovernment and are simply instrumentalities of the executive power, provided bythe legislature for the President as Commander-in-Chief to aid him in properly

commanding the army and navy and enforcing discipline therein, and utilized underhis orders or those of his authorized military representatives. 41 Following theprinciple of separation of powers underlying the existing constitutional organizationof the Government of the Philippines, the power and the duty of interpreting thelaws (as when an individual should be considered to have violated the law) isprimarily a function of the judiciary. 42 It is not, and it cannot be the function of theExecutive Department, through the military authorities. And as long as the civilcourts in the land remain open and are regularly functioning, as they do so todayand as they did during the period of martial law in the country, military tribunalscannot try and exercise jurisdiction over civilians for offenses committed by themand which are properly cognizable by the civil courts. 43 To have it otherwise wouldbe a violation of the constitutional right to due process of the civilian concerned.

In addition to this pronouncement, We take note of the observation made by theSolicitor General to the effect that the death penalty imposed upon the petitionersby the respondent Military Commission No. 34 appears to have been rendered toohastily to the prejudice to the petitioners, and in complete disregard of theirconstitutional right to adduce evidence on their behalf. We quote the pertinentportions of the Manifestation submitted by the Solicitor General, to wit —

"Prior to the session of December 4, 1984, when the respondentCommission rendered its sentence, petitioners have requested theprosecution to provide them with copies of the complete record of trial,including the evidences presented against them, but the prosecution dilly-dallied and failed to provide them with the document requested. Accordingto petitioners, they needed the documents to adequately prepare for theirdefense.

"But a few days before December 4, 1984 the prosecution suddenlyfurnished them with certain transcripts of the proceedings which were notcomplete. Petitioner Othoniel Jimenez was scheduled to start with thepresentation of his evidence on said date and he requested that his firstwitness be served with subpoena. The other petitioners, as agreed upon,were to present their evidence after the first one, Othoniel Jimenez, hasfinished presenting his evidence. But on that fateful day, December 4, 1984,the witness requested to be served with subpoena was not around, becauseas shown by the records, he was not even served with the requestedsubpoena. But in spite of that, respondent Military Commission proceeded toask each one of the petitioners if they are ready to present their evidence.Despite their explanation that Othoniel Jimenez cannot proceed because theprosecution, which performs the duties and functions of clerk of court,failed to subpoena his witness, and that the other petitioners were not readybecause it was not yet their turn to do so, the Commission abruptly decidedthat petitioners are deemed to have waived the presentation of evidence intheir behalf, and considered the case submitted for resolution.

"After a recess of only twenty-five (25) minutes, the session was resumedand the Commission rendered its sentence finding petitioners guilty of all the

charges against them and imposing upon them the penalty of death byelectrocution." 44

Thus, even assuming arguendo that the respondent Military Commission No. 34does have the jurisdiction to try the petitioners, the Commission should bedeemed ousted of its jurisdiction when, as observed by the Solicitor General, thesaid tribunal acted in disregard of the constitutional rights of the accused. Indeed,it is well-settled that once a deprivation of a constitutional right is shown toexist, the tribunal that rendered the judgment in question is deemed ousted ofjurisdiction. 45

Moreover, We find that Proclamation No. 2045 (dated January 17, 1981) officiallylifting martial law in the Philippines and abolishing all military tribunals createdpursuant to the national emergency effectively divests the respondent MilitaryCommission No. 34 (and all military tribunals for that matter) of its supposedauthority to try civilians, including the herein petitioners. cdphil

The main opinion in Aquino, Jr. is premised on the theory that military tribunalshave the jurisdiction to try civilians as long as the period of national emergency(brought about by public disorder and similar causes) lasts. Undoubtedly,Proclamation No. 2045 is an acknowledgment on the part of the ExecutiveDepartment of the Government that the national emergency no longer exists.Thereafter, following the theory relied upon in the main opinion, all militarytribunals should henceforth be considered functus officio in their relationship withcivilians.

By virtue of the proclamation itself, all cases against civilians pending thereinshould eventually be transferred to the civil courts for proper disposition. Theprinciple of double jeopardy would not be an obstacle to such transfer because anindispensable element of double jeopardy is that the first tribunal which tried thecase must be of competent jurisdiction. 46 As discussed earlier, the military tribunalsare devoid of the required jurisdiction.

We take this opportunity to reiterate that as long as the civil courts in the land areopen and functioning, military tribunals cannot try and exercise jurisdiction overcivilians for offenses committed by them. Whether or not martial law has beenproclaimed throughout the country or over a part thereof is of no moment. Theimprimatur for this observation is found in Section 18, Article VII of the 1987Constitution, to wit —

"A state of martial law does not suspend the operation of the Constitution,nor supplant the functioning of the civil courts or legislative assemblies, norauthorize the conferment of jurisdiction on military courts and agencies overcivilians where civil courts are able to function, nor automatically suspendthe privilege of the writ." (Emphasis supplied.)

This provision in the fundamental law is just one of the many steps taken by theFilipino people towards the restoration of the vital role of the judiciary in a freecountry — that of the guardian of the Constitution and the dispenser of justice

without fear or favor.

No longer should military tribunals or commissions exercise jurisdiction overcivilians for offenses allegedly committed by them when the civil courts are openand functioning. No longer may the exclusive judicial power of the civil courts,beginning with the Supreme Court down to the lower courts 47 be appropriated byany military body or tribunal, or even diluted under the guise of a state of martiallaw, national security and other similar labels. prLL

At this juncture, We find it appropriate to quote a few paragraphs from the ponenciaof Mr. Justice Gutierrez in Animas v. The Minister of National Defense, 48 viz —

"The jurisdiction given to military tribunals over common crimes andcivilian(s) accused at a time when all civil courts were fully operational andfreely functioning constitutes one of the saddest chapters in the history ofthe Philippine judiciary.

"The downgrading of judicial prestige caused by the glorification of militarytribunals, the instability and insecurity felt by many members of the judiciarydue to various causes both real and imagined, and the many judicialproblems spawned by extended authoritarian rule which effectively erodedjudicial independence and self-respect will require plenty of time anddetermined efforts to cure.

"The immediate return to civil courts of all cases which properly belong tothem is only a beginning."

And in his separate concurring opinion in Animas, Mr. Chief Justice Teehankeehad this to say —

"I only wish to add that the great significance of our judgment in this case isthat we reestablish and reinstate the fundamental principle based on civiliansupremacy over the military as urged in vain in my dissent in the case ofBenigno S. Aquino, Jr. vs. Military Commission No. 2, et al. that 'Civiliansplaced on trial for offenses under general law are entitled to trial by judicialprocess, not by executive or military process. Judicial power is vested by theConstitution exclusively in the Supreme Court and in such inferior courts asare duly established by law. Military commissions, or tribunals, are notcourts and do not form part of the judicial system. Since we are not enemy-occupied territory nor are we under a military government and even on thepremise that martial law continues in force, the military tribunals cannot tryand exercise jurisdiction over civilians for civil offenses committed by themwhich are properly cognizable by the civil courts that have remained openand have been regularly functioning.'

xxx xxx xxx

"The terrible consequences of subjecting civilians to trial by military processis best exemplified in the sham military trial of the martyred former SenatorBenigno S. Aquino, Jr., whereby he was deprived (1) by the summary exparte investigation by the Chief prosecution staff of the JAGO, of his right to

be informed of the charges against him and of his right to counsel asexpressly recognized by Section 20 of the Bill of Rights of the 1973Constitution; (2) of his vested statutory right to a preliminary investigation ofthe subversion charges against him before the proper court of first instanceas required under Section 5 of the Anti-Subversion Act, R.A. 170 and of theother charges against him before the proper civilian officials and to confrontand cross-examine the witnesses against him under R.A. 5180; (3) of theright to be tried by judicial process, by the regular independent courts ofjustice, with all the specific constitutional, statutory and proceduralsafeguards embodied in the judicial process and presided over not bymilitary officers; and (4) of the right to appeal to the regular appellate courtsand to judicial review by this Court in the event of conviction and impositionof a sentence of death or life imprisonment which the charges carry andwherein a qualified majority of ten (10) votes for affirmance of the deathpenalty is required. In fine, he was denied due process of law as guaranteedunder the Bill of Rights which further ordains that 'No person shall be held toanswer for a criminal offense without due process of law.' Worse, his trial bya military tribunal created by the then President and composed of the saidPresident's own military subordinates without tenure and of non-lawyers(except the law member) and of whose decision the President is the finalreviewing authority as Commander-in-Chief of the Armed Forces deprivedhim of a basic constitutional right to be heard by a fair and impartial tribunal,considering that the said President had publicly declared the evidenceagainst petitioner 'not only strong (but) overwhelming' and therebyprejudged and predetermined his guilt, and none of his military subordinatescould be expected to go against their Commander-in-Chief's declaration.

"Hopefully, all these aberrations now belong to the dead and nightmarishpast, when time-tested doctrines, to borrow a phrase from the then ChiefJustice, 'shrivelled in the effulgence of the overpowering rays of martial rule.'" 49

As stated earlier, We have been asked to re-examine a previous ruling of the Courtwith a view towards abandoning or modifying the same. We do so now but notwithout careful reflection and deliberation on Our part. Certainly, the rule of staredecisis is entitled to respect because stability in jurisprudence is desirable.Nonetheless, reverence for precedent, simply as precedent, cannot prevail whenconstitutionalism and the public interest demand otherwise. Thus, a doctrine whichshould be abandoned or modified should be abandoned or modified accordingly.After all, more important than anything else is that this Court should be right. 50

Accordingly, it is Our considered opinion, and We so hold, that a military commissionor tribunal cannot try and exercise jurisdiction, even during the period of martiallaw, over civilians for offenses allegedly committed by them as long as the civilcourts are open and functioning, and that any judgment rendered by such bodyrelating to a civilian is null and void for lack of jurisdiction on the part of the militarytribunal concerned. 51 For the same reasons, Our pronouncement in Aquino, Jr. v.Military Commission No. 2 52 and all decided cases affirming the same, in so far as

they are inconsistent with this pronouncement, should be deemed abandoned. cdll

WHEREFORE, in view of the foregoing, the Petitions for habeas corpus areDISMISSED for having become moot and academic. The Petitions for certiorari andprohibition are hereby GRANTED. The creation of the respondent MilitaryCommission No. 34 to try civilians like the petitioners is hereby declaredunconstitutional and all its proceedings are deemed null and void. The temporaryrestraining order issued against the respondents enjoining them from executing theDecision of the respondent Military Commission No. 34 is hereby made permanentand the said respondents are permanently prohibited from further pursuingCriminal Case No. MC-34-1 against the petitioners. The sentence rendered by therespondent Military Commission No. 34 imposing the death penalty on thepetitioners is hereby vacated for being null and void, and all the items or propertiestaken from the petitioners in relation to the said criminal case should be returned tothem immediately. No pronouncement as to costs.

SO ORDERED.

Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Bidin,Sarmiento and Cortes, JJ., concur.

Padilla, J., took no part.

Separate OpinionsTEEHANKEE, C.J., concurring:

I hail the Court's unanimous judgment 1 vacating and setting aside the penalty ofdeath by electrocution summarily imposed by respondent military commission onDecember 4, 1984 upon the principal petitioners Eduardo Olaguer, OthonielJimenez, Reynaldo Maclang and Ester Misa Jimenez for lack of jurisdiction of militarycommissions over civilians, and expressly overturning and rejecting the contrary1975 ruling in Benigno S. Aquino, Jr. vs. Military Commission No. 2 2 andsubsequent cases, issued during the darkest chapter of our history when time-testeddoctrines guaranteeing a person's right to due process in preservation of his life andliberty "shrivelled in the effulgence of the overpowering rays of martial rule." Weuphold once again the supremacy of the Constitution and of the Rule of Law and ofcivilian authority over the military.

1. As petitioners submitted in apparent futility at the time in view of the Aquinoruling, they were denied from the very beginning elementary due process whichguarantees their constitutional right to an impartial trial because, prescinding fromcivilians' right to trial by judicial, not military, process, the President (Commander-in-Chief) and the Defense Minister who were the supposed targets of petitioners'conspiracy, were also the very authorities who personally approved the filing of thecharges against them and referred them to the respondent commission for trial, andas reviewing authorities, had the power to reverse or modify every judgment of

respondent commission, even a judgment of acquittal; furthermore, the Presidentand the Defense Minister had the power directly or indirectly to substitute atpleasure the members of respondent commission, assign them as subordinates tomore hazardous or difficult duties and to promote or prevent their promotion tohigher rank. They could hardly be expected to go against their superiors' declarationof the "overwhelming" evidence against the accused. As stressed in my dissent inAquino:

"Petitioner's plea that his trial by a military tribunal created by the Presidentand composed of the President's own military subordinates without tenureand of non-lawyers (except the law member) and of whose decision thePresident is the final reviewing authority as Commander-in-Chief of theArmed Forces deprives him of a basic constitutional right to be heard by afair and impartial tribunal, considering that the President has publiclydeclared the evidence against petitioner 'not only strong (but) overwhelming'and in petitioner's view thereby prejudged and predetermined his guilt meritsconsideration.

"In Petitioner's view, he has been publicly indicted and his guilt prejudged bythe President when in a nation-wide press conference on August 24, 1971following the Plaza Miranda bombing three days earlier of the Liberal Partyproclamation meeting, the President charged him and disclosed evidence inthe possession of the government linking petitioner to some illegal andsubversive activities, in 1965-1971, which are virtually the same chargesnow filed against him before respondent military commission, and declaredthe evidence against petitioner 'not only strong (but) overwhelming.' ThePresident explained on the same occasion that in not acting againstpetitioner, he had 'erred on the side of generosity as well as of liberalityhoping that good sense may someday catch up with him' since petitionerwas 'the only opposition senator left in the Senate' after the [Plaza Miranda]bombing, but that he did not know 'what will happen later on, because, ofcourse, the military insist that we must not make any exceptions to thegeneral rule.'

"While one may agree that the President as Commander-in-Chief woulddischarge his duty as the final reviewing authority with fealty to his oath 'todo justice to every man,' particularly because of his renowned legal sagacityand experience, still under the environmental facts where the militaryappears to have been impressed by the President's appraisal of the evidenceand without casting any reflection on the integrity of the members ofrespondent military commission which petitioner himself acknowledges, thedoctrine consistently held by the Court that 'elementary due processrequires a hearing before an impartial and disinterested tribunal' and that 'Allsuitors . . . are entitled to nothing short of the cold neutrality of anindependent, wholly free, disinterested and impartial tribunal' calls forapplication in the present case." 3

The then President had himself acknowledged the indispensability of the judicialprocess, stating in the same nationwide press conference of August 24, 1971 that: prLL

"I am a lawyer, my training is oriented towards the protection of the Bill ofRights, because if you will remember, I have repeatedly said, that if it werenot for the Bill of Rights I would not be here now. If it were not for thejudicial process, I would not be President of the Republic of the Philippines. .. ." 4

Yet, he denied to Aquino the very self-same right to due process and judicialprocess.

2. The total unacceptability of military trials for civilians may be appreciated fromthe fate and ordeal of petitioners. Since their arrest on December 24, 1979, theyhad been continuously confined for over five years (without physical access tolawyers, witnesses and court records in the case of Eduardo Olaguer 5 ) and spentseven Christmases in confinement, before their provisional release on January 23,1986 (save petitioner Ester Misa Jimenez whose provisional release was earliergranted in January, 1981). The extreme difficulties encountered by civilian counselsin defending them before respondent military commission can best be seen fromtheir written motions/manifestations of withdrawal as such counsel. FormerSenator Lorenzo M. Tañada and Atty. Wigberto Tañada had previously withdrawn ascivilian counsel for petitioner Eduardo Olaguer.

Civilian counsel Sabino Padilla, Jr. for petitioner Othoniel Jimenez was likewiseconstrained to file on January 10, 1983 his Motion to Withdraw Appearance, statingthe following: LLpr

"1. In the hearing of March 2, 1982, the prosecution moved for thedischarge of the accused Carlos Lazaro and Teodorico Diesmos. Theprosecution alleged that the requirements of Sec. 9, Rule 119 of the Rules ofCourt had been complied with. Considering that trial had commenced oneyear and a half before the prosecution made this move, the defensevehemently objected. This Military Commission ruled:

LAW MEMBER:Please, just listen. We are of the view that this Commission

has no authority to discharge the accused Carlos Lazaro andaccused Teodorico Diesmos from the Charge Sheet to be utilizedas state witnesses. In the same manner that the herein accusedhave been included in the Charge Sheet upon the approval of theappointing authority, the exclusion or discharge of any of themshould likewise carry the approval of the appointing authority.Therefore, the matter of the discharge of the said two (2) accusedshould he addressed to the appointing authority for hisconsideration. (Tsn, March 2, 1982, pp. 42-43)

xxx xxx xxx

"3. At the start of the hearing last December 13, 1982, the prosecutioninformed this Military Commission and the defense that on December 11,1982 (a Saturday), the Minister of National Defense had ordered the

discharge of the accused Lazaro and Diesmos, and that the prosecutionwould be presenting these accused in that hearing.

"In view of the vital implications of such a discharge on the conduct of thedefense of the other accused, all three counsel of choice immediately movedthat the hearing be postponed or that witnesses other than Lazaro andDiesmos be presented in that hearing, to allow counsel to take to theSupreme Court the ruling of the Minister of National Defense as well as thisMilitary Commission's abdication of a trial court's jurisdiction to grant or denya prosecution motion to discharge an accused.

"To the complete surprise and dismay of defense counsel of choice, theprosecution insisted on presenting Lazaro and Diesmos before the otheraccused could take to the Supreme Court the legality and propriety of theirdischarge as accused to be state witnesses. Counsel of choice had noalternative but to withdraw from the proceedings that day.

"Subsequent events disclosed why Lazaro and Diesmos had to be presentedas witnesses on that day, December 13, 1982. They were to recite, asindeed they recited a newly fabricated and fantastic story linking (threeyears after the fact) the present accused with the accused in the We Forumcase, who were being arraigned that afternoon in the Court of First Instanceof Quezon City. Pursuant to this scenario, all the newspapers the followingday carried the same release that the accused herein and those in the WeForum were members of one conspiracy.

"It has thus become abundantly clear to the undersigned counsel that underthe present circumstances any further participation on his part in theproceedings before this Military Commission would not only be futile but alsobring disgrace and dishonor to himself and to the legal profession." 6

Civilian counsel Joaquin L. Misa for his close kin, Ester Misa Jimenez, afterprefatory remarks that he "had never appeared before in a military court [and]entertained a degree of confidence in the quality of military justice [and] wasreared with a healthy regard for military officers" stated in his writtenmanifestation dated January 10, 1983 that:

". . . many events in the course of these proceedings have eroded theconfidence of the undersigned in ultimately obtaining justice from thisHonorable Commission.

"The last straws so to speak, were the events of December 13, 1982. Threehearings of this case prior to the December 13 hearing were cancelled orpostponed upon motion of the Prosecution on the shallow and neverexplained excuse that their next supposed witness, Col. Beroya, was notavailable. On December 13, the Prosecution read into the record an allegedresolution on the state witness question by the Minister of National Defense(Note that up to this writing the undersigned has not been served with acopy of that alleged resolution perhaps because it was written on stationerymarked CONFIDENTIAL). After the supposed resolution by the Minister ofNational Defense was read into the record, the undersigned moved for a

postponement of even one week to afford the undersigned the opportunityto either ask for a reconsideration by the Minister or raise the matter to theSupreme Court on Certiorari. The Prosecution's objection was so vehementthat it was incomprehensible to the undersigned why a simple motion couldevoke such a violent reaction from the Prosecution (Cols. Ridao and Disiertoseemed to be outdoing each other in the decibels of their objections). Thiswas especially baffling to the undersigned because theretofore in severalinstances when the undersigned inquired if there had been a ruling by 'thehigher authorities' on the question of the state witnesses, The Prosecutionalways assured the undersigned and the other civilian defense counsel thatif a ruling is made, and it is adverse to the defense we will be given enoughtime to deal with the problem.

"As the Commission well knows the defense motion for postponement wasdenied and two (2) accused who were released from the case testified in theabsence of all the civilian defense counsel. Only upon reading the newspaperthe next day was the indecent haste of the Prosecution to present the two(2) witnesses explained. The Prosecution, and the Commission by goingalong with the Prosecution, apparently wanted to time the newly fabricatedtestimony of Diesmos and Lazaro linking this case with the We Forum casethe arraignment of which was held on December 13, in the afternoon.

"The orchestration and synchronization of such testimony in this case (atthe expense of denying the accused recourse against the resolution of theMinister) with the arraignment in the We Forum case taken together with theidentically worded newspaper stories appearing in all the dailies now inpublication has made it clear to the undersigned that this case will not bedecided on its merits but on the convenience that it affords to the pursuit ofthe government's objectives." 7

Respondent military commission furthermore on December 4, 1984 summarilycalled all proceedings to a halt, denied any continuation of the case and abruptlydeclared the case submitted without any evidence for the defense, notwithstandingthat it had not subpoenaed the first defense witness for petitioner Othoniel Jimenezas duly requested, while the other petitioners were not expected to be ready withtheir witnesses until later hearings; and after a mere 25-minute recess, rendered its"judgment" imposing the death penalty by electrocution on all the above-namedpetitioners. No objection to this bizzarre procedure came from military counsels whowere assigned to represent petitioners after their civilian counsels' withdrawal, foras the Solicitor General now manifested, "the records show, they more often thannot practically acted for the prosecution rather than as defense counsels." 7a

3. I hail the Court's reinstatement of the settled ruling in this jurisdiction thatdeprivation and disregard of the constitutional rights of an accused ousts the courtor tribunal of jurisdiction, which had been greatly eroded. This reenforces the 1987Constitution's reaffirmation of the role of the Supreme Court as the guarantor ofthe constitutional and human rights of all persons within its jurisdiction with thefunction of seeing to it that these rights are respected and enforced. As the Courtstressed in Gumabon vs. Director of Bureau of Prisons 8 "Once a deprivation of aconstitutional right is shown to exist, the court that rendered the judgment is

deemed ousted of jurisdiction and habeas corpus is the appropriate remedy to assailthe legality of the detention." 9 So accused persons who are deprived of theirconstitutional right of a speedy trial should be set at liberty. 10 Likewise personsdetained indefinitely without charges so much so that the detention becomespunitive and not merely preventive in character are entitled to regain theirfreedom, for the spirit and the letter of our Constitution negates as contrary to theprecepts of human rights and freedom that a person be detained indefinitelywithout any charges.

4. Indeed, Art. VII, section 18 of the 1987 Constitution, drawing upon the sadlessons of the excessive concentration of powers in the Chief Executive in theprevious Constitutions which enabled him to exercise absolute power to the point oftaking over the entire government, has provided for measures to curtail such abuseof executive power. The late former Chief Justice Roberto Concepcion, pillar andchampion of the Rule of Law, chairman of the 1986 Constitutional Commission'sJudiciary Committee and Chief Justice of the Supreme Court at the time of theimposition of martial law in 1972, summarized these salutary changes, in his lastpublic address, as follows:

"1. Under the New Constitution, martial law does not suspend theoperation of the New Constitution or supplant the functioning of the civilcourts or legislative assemblies. Neither does it authorize the conferment ofjurisdiction on military courts and agencies over civilians when civil courtsare able to function.

"2. Martial law does not supplant the civil courts when the same are ableto function.

"3. Martial law does not automatically suspend the privilege of the writ ofhabeas corpus.

"4. Martial law may not be declared upon the ground of imminent dangerof invasion or rebellion. In the event of such danger, the President may callthe armed forces to prevent or suppress the danger, without declaringmartial law or suspending the privilege of the writ.

"5. Within forty-eight (48) hours after the proclamation of martial law, thePresident shall report the same to Congress in person or in writing.

"6. Congress may, by a majority vote of all its members, revoke theproclamation of martial law or the suspension of the privilege of the writ,which action of Congress may not be set aside by the President.

"7. The proclamation of martial law or suspension of the privilege of thewrit by the President, may not exceed sixty (60) days without theconcurrence of Congress.

"8. The Supreme Court has been expressly authorized to 'review in anappropriate proceeding filed by any citizen the sufficiency of the factualbasis of the proclamation of martial law or of the suspension of the privilege

of the writ or the extension thereof, and must promulgate its decisionthereon within thirty (30) days from its filing.'

"9. Under the '1973 Constitution,' as amended, at least ten (10) votes ofthe members of the Supreme Court were necessary to invalidate or declarea law unconstitutional, regardless of the number of vacancies in theSupreme Court or the number of its members who participated in thedeliberations on the issues involved in the case, and voted thereon. Underthe New Constitution a simple majority of the members who took part insuch deliberation and cast their votes thereon is sufficient.

"10. In the case of suspension of the privilege of the writ, the same doesnot apply to persons who have not been placed under the custody of acourt of justice.

"11. In case of suspension of the privilege of the writ, the persondetained must be released unless judicially charged within three (3) days." 11

These substantial checks by the legislature as well as by the judiciary on the ChiefExecutive's power to proclaim martial law or to suspend the privilege of the writ ofhabeas corpus were meant to forestall a recurrence of the long and horriblenightmare of the past regime when one single clause, the Commander-in-Chiefclause of the Constitution then in force that authorized the President to declaremartial law was held to have nullified the entire Constitution and the Bill of Rightsand justified the then President's taking over "absolute command" of the nation andthat the people could "only trust and pray that, giving him their own loyalty withutmost patriotism, (he) will not fail them." Thus, persons held under PresidentialCommitment or Detention Orders were detained indefinitely without charges, yethad no recourse to the courts. Even if they were acquitted in court, the militarywould not release them until and unless the then President lifted the preventivedetention order. 12 It was a long and horrible nightmare when our people's rights,freedoms and liberties were sacrificed at the altar of "national security" eventhough it involved nothing more than the President-dictator's perpetuation in officeand the security of his relatives and some officials in high positions and theirprotection from public accountability of their acts of venality and deception ingovernment, many of which were of public knowledge. LLpr

Draconian decrees were issued whereby many were locked up indefinitely for"rumor-mongering," "unlawful use of means of publication and unlawful utterances,and alarms and scandals." While the people for the most part suffered in silence andwaited, others never gave up the struggle for truth, freedom, justice and democracy,a common commitment which is what makes a people a nation instead of agathering of self-seeking individuals. The national will was systematicallyundermined to the point, of national mockery, that the day of imposition of martiallaw was proclaimed as "National Thanksgiving Day." As the Court observed throughMr. Justice Gutierrez in Animas vs. Minister of National Defense, 13 the era ofmartial law when military tribunals, against all tenets of due process, were

conferred jurisdiction over common crimes and civilians, their glorification with thedowngrading of judicial prestige and "the many judicial problems spawned byextended authoritarian rule which effectively eroded judicial independence and self-respect will require plenty of time and determined efforts to cure."

5. The treacherous assassination on August 21, 1983 of the martyred Benigno S.Aquino, Jr., within minutes of his arrival at the Manila International Airport,although ringed with 2,000 soldiers, shocked and outraged the conscience of thenation. After three years of exile following almost eight years of detention sincemartial law, Aquino, although facing the military commission's predetermineddeath sentence, supra, yet refused proper travel documents, was returning home"to strive for genuine national reconciliation founded on justice." The late SenatorJose W. Diokno who passed away this year was among the first victims of themartial law coup d'etat to be locked up with Senator Aquino. In March, 1973, all oftheir personal effects, including their eyeglasses were ominously returned to theirhomes. Their wives' visitation privileges were suspended and they lost all contactfor over a month. It turned out that Aquino had smuggled out of his cell a writtenstatement critical of the martial law regime. In swift retribution, both of them wereflown out blindfolded to the army camp at Fort Laur in Nueva Ecija and kept insolitary confinement in dark boarded cells with hardly any ventilation. When theirpersons were produced before the Court on habeas corpus proceedings, they were apitiable sight having lost about 30 to 40 lbs. in weight. Senator Diokno was to bereleased in September, 1974 after almost two years of detention. No charges of anykind were ever filed against him. His only fault was that he was a possible rival forthe presidency.

Horacio Morales, Jr., 1977 TOYM awardee for government service and thenexecutive vice-president of the Development Academy of the Philippines, wasamong the hard-working government functionaries who had been radicalized andgave up their government positions. Morales went underground on the night he wassupposed to receive his TOYM award, declaring that "(F)or almost ten years, I havebeen an official in the reactionary government, serviced the Marcos dictatorship andall that it stands for, serving a ruling system that has brought so much suffering andmisery to the broad masses of the Filipino people. (I) refuse to take any more part ofthis. I have had enough of this regime's tyranny and treachery, greed and brutality,exploitation and oppression of the people," and "(I)n rejecting my position and partin the reactionary government, I am glad to be finally free of being a servant offoreign and local vested interest. I am happy to be fighting side by side with thepeople." He was apprehended in 1982 and was charged with the capital crime ofsubversion, until he was freed in March, 1986 after President Corazon C. Aquino'sassumption of office, together with other political prisoners and detainees andprisoners of conscience in fulfillment of her campaign pledge.

Countless others forfeited their lives and stand as witnesses to the tyranny andrepression of the past regime. Driven by their dreams to free our motherland frompoverty, oppression, iniquity and injustice, many of our youthful leaders were tomake the supreme sacrifice. To mention a few: U.P. Collegian editor AbrahamSarmiento, Jr., worthy son of an illustrious member of the Court pricked the

conscience of many as he asked on the front page of the college paper: Sino angkikibo kung hindi tayo kikibo? Sino ang kikilos kung hindi tayo kikilos? Kung hindingayon, kailan pa? 13a He was locked up in the military camp and released onlywhen he was near death from a severe attack of asthma, to which he succumbed.Another TOYM awardee, Edgar Jopson, an outstanding honor student at the AteneoUniversity, instinctively pinpointed the gut issue in 1971 — he pressed for a "non-partisan Constitutional Convention;" and demanded that the then president-soon-to-turn dictator "put down in writing" that he was not going to manipulate theConstitution to remove his disqualification to run for a third term or perpetuatehimself in office and was called down as "son of a grocer." When as he feared,martial law was declared, Jopson went underground to continue the struggle andwas to be waylaid and killed at the age of 34 by 21 military troops as the reportedhead of the rebel movement in Mindanao. 14 Another activist honor student leader,Emmanuel Yap, son of another eminent member of the Court, was to disappear onValentine's Day in 1976 at the young age of 24, reportedly picked up by militaryagents in front of Channel 7 in Quezon City, and never to be seen again.

One of our most promising young leaders, Evelio B. Javier, 43, unarmed, governor ofthe province of Antique at 28, a Harvard-trained lawyer, was mercilessly gunneddown with impunity in broad daylight at 10 a.m. in front of the provincial capitolbuilding by six mad-dog killers who riddled his body with 24 bullets fired from M-16armalite rifles (the standard heavy automatic weapon of our military). He was justtaking a breather and stretching his legs from the tedious but tense proceedings ofthe canvassing of the returns of the presidential snap election in the capitolbuilding. This was to be the last straw and the bloodless EDSA revolt was soon tounfold. The Court in Javier vs. Comelec, 15 through Mr. Justice Cruz, "said thesemeager words in tribute to a fallen hero who was struck down in the vigor of hisyouth because he dared to speak against tyranny. Where many kept a meeklysilence for fear of retaliation, and still others feigned and fawned in hopes of safetyand even reward, he chose to fight. He was not afraid. Money did not tempt him.Threats did not daunt him. Power did not awe him. His was a singular and all-exacting obsession: the return of freedom to his country. And though he fought notin the barricades of war amid the sound and smoke of shot and shell, he was asoldier nonetheless, fighting valiantly for the liberties of his people against theenemies of his race, unfortunately of his race too, who would impose upon the landa perpetual night of dark enslavement. He did not see the breaking of the dawn, sadto say, but in a very real sense Evelio B. Javier made that dawn draw nearerbecause he was, like Saul and Jonathan, 'swifter than eagles and stronger thanlions.' "

6. The greatest threat to freedom is the shortness of human memory. We mustnote here the unforgettable and noble sacrifices of the countless brave and patrioticmen and women who feel as martyrs and victims during the long dark years of thedeposed regime. In vacating the death sentence imposed on the petitioners whosurvived the holocaust, we render them simple justice and we redeem and honorthe memory of those who selflessly offered their lives for the restoration of truth,decency, justice and freedom in our beloved land. Due recognition must be givenalso that 85% of the Armed Forces of the Philippines readily joined the EDSA revolt

and redeemed the honor of the military by recognizing civilian supremacy and thesupreme mandate given by the people to the true winners of the elections. Witnessthe testimony of Gen. Fidel V. Ramos, now chief of the new Armed Forces of thePhilippines, as he recounted early last year his breakaway from the past regime:

"The Armed Forces of the Philippines had ceased to be the real armed forcessupposed to be the defender of the people. There had developed an elitegroup within the AFP . . . and the AFP no longer represented its rank and fileand officers corps.

"Mr. Marcos was no longer the same President that we used to know, towhom we pledged our loyalty and dedicated our services. He was no longerthe able and capable commander-in-chief whom we used to count on. Hehad already put his personal interest, his family interest, above the interestof the people.

"The small people in the AFP and the Integrated National Police were nowbeing pushed around by powerful military officers motivated by very selfishdesires and intentions. Many of those officers were now practically theservants of powerful politicians." 16

The present PC/INP Chief, Major General Renato de Villa, on the 85th anniversary ofthe Philippine Constabulary last August 8th publicly stated that "for the perfidy of afew, we owe the whole nation a sincere apology and a commitment to intensivelypursue our new program of reforms, to weed out the misfits who bring discredit toour organization," and solemnly pledged that "now and forever, your PC/INP standsready and committed to fight lawlessness, injustice and oppression, as well as thesinister forces that continue to threaten our stability and progress as a free country.We make this solemn pledge here and now, before our entire nation, before ourCommander-in-Chief who is the personification of our national honor and unity,before God who has always blessed our people . . . — to consecrate our lives to theprotection and preservation of our national ideals — of unity, peace, justice anddemocracy."

7. The people by their overwhelming ratification of the 1987 Constitution at theplebiscite held last February 2nd unequivocally reaffirmed their collective act ofinstalling our new government following the bloodless EDSA revolt. They refused tobe deterred by the last-ditch efforts of the forces of the Right and of the Left toderail our return to full normalcy and the restoration of our democratic institutions.They proclaimed a renewed and vigorous faith in the democratic process. Among thegreat changes introduced in the 1987 Constitution to harness the Presidentialpower to impose martial law and strengthen the system of checks and balances inour government were those made by the venerable late Chief Justice RobertoConcepcion and his fellow members of the 1986 Constitutional Commission,hereinabove enumerated. 17 With their work completed, and the 1987 Constitutiondecisively approved and ratified by the people, Chief Justice Concepcion could thenclaim his eternal rest on last May 3rd and leave us this legacy and caveat. "One

thing," he said, "I have learned during the martial law regime, and that is — that aConstitution is as good only as it is enforced. . . . the Primacy of the Law dependsultimately upon the people; upon their awareness of this fact and their willingnessand readiness to assume the corresponding responsibility, in short, upon theirpolitical maturity." 18

Footnotes

1. For violation of Presidential Decree No. 885 (The Revised Anti-Subversion Law), asamended by Batas Pambansa Blg. 31.

2. At that time, the Judge Advocate General was General Hamilton Dimaya while theMinister of National Defense was Juan Ponce Enrile.

3. At the time Military Commission No. 34 was created, General Romeo Espino wasthe Chief of Staff of the Armed Forces of the Philippines.

4. Military Commission No. 34 is composed of Brigadier General Emilio P. Melendres asPresident, Colonel Marciano I. Bacalla as Law Member, and Colonels Roberto F.Ang, Higino E. Dacanay, Norberto Furagganan, Mayo Domingo and SolimanGutierrez as Members; Page 95, Rollo.

5. Page 19, Rollo.

6. G.R. No. 54558, pages 2 to 44, Rollo.

7. The respondents were represented by the Office of the Solicitor General.

8. Pages 255 to 268, Rollo.

9. Pages 287 to 291, Rollo.

10. Page 296, Rollo.

11. Pages 333 to 352, Rollo.

12. G.R. No. 69882, pages 2 to 64, Rollo.

13. Pages 243 to 267, Rollo.

14. Page 346, Rollo.

15. Pages 208, SCRA 114.

16. Page 308, Rollo, Vol. II, G.R. No. 69882.

17. Herrera v. Enrile, L-40181, 62 SCRA 547 (1975).

18. Cagaya v. Tangonan, L-40970, 66 SCRA 216, 219 (1975).

19. 63 SCRA 546 (1975). Mr. Justice Felix Q. Antonio wrote the main opinion. TheDecision of the Court was not unanimous inasmuch as some Justices haddissenting views.

20. Citing Benigno S. Aquino, Jr., et al. v. Juan Ponce Enrile, L-35546, 59 SCRA 183(1974), and companion cases.

21. Citing Benigno S. Aquino, Jr., et al. v. Commission on Elections, L-40004, 62 SCRA275 (1975).

22. Citing Fairman, The Law of Martial Rule, 1943 Ed., p. 262.

23. Citing Winthrop, Military Law and Precedents, Vols. 1 and 2, p. 830.

24. Citing Moyer v. Peabody, 212 U.S. 78.

25. Citing Schwartz, Constitutional Law, p. 160.

26. Citing Simon v. Craft, 182 U.S. 427 (1901) and Ballard v. Hunter, 204 U.S. 241(1907).

27. 96 SCRA 402, February 29, 1980.

28. 102 SCRA 7, January 15, 1981.

29. 102 SCRA 33, January 15, 1981.

30. 102 SCRA 56, January 16, 1981.

31. 109 SCRA 22, November 6, 1981.

32. 109 SCRA 273, November 19, 1981.

33. G.R. No. 62798, December 22, 1983 and March 13, 1984; cited in Rodolfo Animasv. The Minister of National Defense, G.R. No. 51747, December 29, 1986. See alsoSardinia-Linco v. Pineda (104 SCRA 757) where this Court did not implement theExecutive Order to transfer the criminal case from the civil court to theSandiganbayan, and Evangelista v. Judge Luis Petia, et al. (G.R. No. 62640, July 22,1983) where a Petition of a member of the Philippine Constabulary seeking thetransfer of the case to a military tribunal was dismissed for lack of merit.

34. G.R. No. 51747, December 29, 1986.

35. 63 SCRA 611 to 648.

36. 63 SCRA 665 to 666.

37. In re Oliver, 333 U.S. 257 (1948); Sections 1 and 14(2), Article III, 1987Constitution. There appears to be no substantial change from the correspondingprovisions of the 1973 Constitution.

38. Citing Lopez v. Roxas, 17 SCRA 756 (1966) and Scoty's Department Store v.Micaller, 99 Phil. 762 (1956).

39. Citing Ex-parte Milligan, 4 Wallace (U.S. 127, 18 L. Ed. 297.

40. 350 U.S. 5, 14 (1955).

41. Ruffy v. Chief of Staff, 75 Phil. 875 (1946).

42. Koppel (Phil.), Inc. v. Yatco, 77 Phil. 496, 515 (1946).

43. Ex-parte Milligan, supra.

44. Manifestation dated February 11, 1987.

45. Gumabon v. Director of the Bureau of Prisons, 37 SCRA 420, 427 (1971),reiterated in Dacuyan v. Ramos, 85 SCRA 487, 491 (1978).

46. People vs. Ylagan, 58 Phil. 851 (1933).

47. Section 1, Article VIII, 1987 Constitution.

48. Supra.

49. Citations omitted.

50. Phil. Trust Company and Smith, Bell & Co. v. Mitchell, 59 Phil. 30, 36 (1933), citedwith approval in Koppel (Phil.) Inc. v. Yatco, supra, at 515.

51. People v. Navarro, 63 SCRA 264, 274 (1975).

52. L-37364, 63 SCRA 546.

TEEHANKEE, C.J., concurring:

1. Save for Mr. Justice Padilla who inhibited from the case, as his brother was counselfor petitioner Othoniel Jimenez.

2. 63 SCRA 546.

3. Idem at pp. 625-627.

4. Idem at p. 628.

5. Record, Vol. I, G.R. No. 69882, p. 84.

6. Record, Idem, Annex "E," pp. 71-73; emphasis supplied.

7. Record, idem, Annex "F," pp. 75-76; emphasis supplied.

7-a Solicitor General's Manifestation in lieu of Brief dated February 11, 1987, Record,Vol. II, p. 528.

8. 37 SCRA 420, 427.

9. Cf. Conde v. Rivera, 45 Phil. 650 (1924); Harden v. Director of Prisons, 81 Phil. 741(1948); Abriol v. Homeres, 84 Phil. 525 (1949); Chavez v. Court of Appeals, 24SCRA 663 (1968); Celeste v. People, 31 SCRA 391 (1970).

10. Conde v. Diaz, 45 Phil. 173 (1923).

11. Address of Chief Justice Roberto Concepcion on February 10, 1987 on the eve ofthe first death anniversary of the Antique martyr Evelio Javier at the Ateneo LawSchool.

12. In re: habeas corpus petition for Dr. Aurora Parong, et al., 121 SCRA 472 (1983);see Toyoto vs. Ramos, 139 SCRA 316 (1985); Habeas Corpus cases of RenatoCañete (G.R. No. 63776, August 16, 1984) and Aristedes Sarmiento (131 SCRA405, August 27, 1984).

13. G.R. No. 51747, Dec. 29, 1986.

13-a If we don't protest, who will protest? If we don't move, who will move? If notnow, when else?

14. Olivares; Babst: Bulletin Today issue of Sept. 29, 1982; Soliven: Mr. & Ms. issue ofSept. 28-Oct. 4, 1984.

15. 144 SCRA 194, 208 (Sept. 22, 1986).

16. Manila Times issue of March 11, 1986.

17. Supra, par. 4 hereof.

18. Supra, see fn. 11.